Novex Communications Pvt. Ltd. v. DXC Expertise Non-public Restricted – Evaluation I


For abstract of the case, click on right here.

Part 33 and Enterprise of granting licenses by Copyright Societies

33. Registration of Copyright society.— (1) No individual or affiliation of individuals shall, after coming into power of the Copyright (Modification) Act, 1994 (38 of 1994) begin or, stick with it the enterprise of issuing or granting licences in respect of any work by which copyright subsists or in respect of every other rights conferred by this Act besides below or in accordance with the registration granted below sub-section (3):

Supplied that an proprietor of copyright shall, in his particular person capability, proceed to have the correct to grant licences in respect of his personal works constant along with his obligations as a member of the registered copyright society:

Supplied additional that the enterprise of issuing or granting licence in respect of literary, dramatic, musical and inventive works included in a cinematograph movies or sound recordings shall be carried out solely by a copyright society duly registered below this Act:

………………..

Firstly, the definition of “enterprise” types a part of the core reasoning of the Excessive Court docket. The Excessive Court docket held that the “enterprise” implies continuity and is “a industrial enterprise carried on for revenue“. (ninth version Black’s Regulation Dictionary and State of M.P v. Mukesh, 2006 13 SCC 197). (para 29).

In Sodan Singh v. New Delhi Municipal Committee (1989) 4 SCC 155), the Supreme Court docket interpreted “enterprise” as a time period which is broad sufficient to incorporate something which occupies the time, consideration and labour of a person for the aim of revenue. I couldn’t get entry to the ninth version of Blacks Regulation Dictionary. However I went by the 4th version (web page 248) which supplies for the same definition.

The definition relied on by the Madras Excessive Court docket focuses on the ‘enterprise’ side solely. Going by this definition, a person can by no means run a enterprise. This incomplete appreciation of “enterprise” had an adversarial impact on appreciating the statutory framework set out by Part 33 of the Copyright Act.

Secondly, the Court docket distinguished first and second provisos to Part 33(1) as follows: “29…..To place it in easy phrases, the correct of an proprietor, in his particular person capability, to use a proper by issuing a license stays untouched. Nonetheless, in the case of the “enterprise” i.e., a industrial enterprise of issuing licenses, the regulation, because it presently stands, requires it to be routed solely by a copyright society registered below Part 33(3) of the Act.”

I don’t agree for the reason that granting of licenses is by itself a enterprise regardless of whether or not the license is granted at a person or non-individual stage.

Additional, a proviso “carves out an exception to the primary provision to which it has been enacted as a proviso and to no different.” (Union of India v. Sanjay Kumar Jain) The principle provision in Part 33(1) states that the enterprise of issuing or granting licenses may be carried solely by copyright societies. The primary proviso i.e. “an proprietor of copyright shall, in his particular person capability, proceed to have the correct to grant licences in respect of his personal works constant along with his obligations as a member of the registered copyright society” must be interpreted as towards the primary provision i.e. the enterprise of issuing or granting licenses solely by copyright societies. The logical deduction is, particular person licensing is allowed as an exception to licensing by copyright societies.

The second proviso (i.e. “the enterprise of issuing or granting licence in respect of literary, dramatic, musical and inventive works included in a cinematograph movies or sound recordings shall be carried out solely by a copyright society”) must be learn as an exception to the primary proviso. [It will be incoherent if the second proviso is read as an exception to the main provision (as the second proviso will then tend to repeat the main provision).] When second proviso is learn as an exception to the primary proviso, it results in the next logical conclusion: the enterprise of granting licenses in respect of literary, dramatic, musical and inventive works included in a cinematograph movies or sound recordings may be carried solely by the copyright societies. It’s irrelevant whether or not the above enterprise is carried in particular person or non-individual capability.

That results in the following query: how you can reconcile Part 33 with different provisions of the Copyrights Act?



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